unmitigated right to withdraw his consent overtakes any prior
contractual agreement to the contrary and is dispositive in this
The Motion Judge’s Decision: Contract and Property Law
 The motion judge’s task was a difficult one. This was the
first case to consider the disputed post-separation use of an in
vitro embryo made up of donated reproductive material.
Unfortunately, neither party argued the case before the motion
judge with reference to the Consent Regulations. Indeed, it does
not appear that those regulations were even brought to the
motion judge’s attention. Instead, both parties took the position
that the embryo should be treated as property governed by
contract law. In light of those positions, it is unsurprising that the
motion judge decided the case as he did.
 The motion judge first looked to the contracts that the
parties entered into with reproductive companies in both Georgia
and Ontario. The parties signed two contracts with Reproductive
Biology Associates (“RBA”) in Georgia, the company that actually
created the embryos. The first RBA contract dealt with the
procedure that would be followed in creating and transferring the
embryos. The second RBA contract related to the cryopreservation of the embryos. That contract reflects the parties’ agreement
that the frozen embryos would be donated if the parties were
unable to make a decision as to their disposition in the future. In
the event of divorce, the parties acknowledged that they understood that “the legal ownership of any stored embryo(s)” would
be “determined in a property settlement” and released as directed
“by order of a court [of] competent jurisdiction”.
 The parties also signed a contract with ISIS Regional
Fertility Centre (now known as the Reproductive Care Centre
(“RCC”)) in Mississauga, Ontario. The Ontario contract allows
for the cryopreserved embryos to be thawed and used for the
couple’s “own reproductive use”. The contract names the respondent as the “patient” and the appellant as the “partner”.
The parties contracted that, in the event of “divorce or legal
separation between the patient and her partner”, the RCC would
“respect the patient’s wishes”. The Ontario contract also provides
for a withdrawal of consent as follows:
Prior to providing this consent, we received and reviewed written information
from ISIS [now RCC] confirming that our cryopreserved in vitro embryo(s)
would be used only for the purposes which we authorized in this Consent and
that we could withdraw our consent to the use of our in vitro . . . embryo(s) at
any time provided that we did so in the manner explained.